O'Dwyer v Keegan

• Jurisdiction: Ireland
• Judge: BARRON J.,[NEM DISS]
• Judgment Date: 08 May 1997
• Neutral Citation: [1997] IESC 5
• Date: 08 May 1997
• Docket Number: [1995 No. 648 Sp and S.C. Nos. 228, 231 and 251 of 1996]
• Court: Supreme Court

[1997] IESC 5

THE SUPREME COURT

Murphy J.

Lynch J.

Barron J.

228/231/251-96

O'DWYER & CHARLETON v. KEEGAN & CUMMINS

IN THE MATTER OF THE ESTATE OF THOMAS CUMMINS DECEASED

AND IN THE MATTER OF THE ESTATE OF KATHLEEN CUMMINS DECEASED

BETWEEN/

JOHN O'DWYER AND GERARD CHARLETON

Plaintiffs/Respondents

and

THOMAS KEEGAN

Defendant/Appellant

and

WILLIAM CUMMINS, PATRICK CUMMINS SENIOR, MICHAEL CUMMINS, PATRICK CUMMINS JUNIOR AND KATHLEEN MORELY

Notice Parties/Respondents

Citations:

SUCCESSION ACT 1965 PART IX

SUCCESSION ACT 1965 S113

SUCCESSION ACT 1965 PART X

SUCCESSION ACT 1965 S111

SUCCESSION ACT 1965 S109

SUCCESSION ACT 1965 S112

SUCCESSION ACT 1965 S3

URQUHART, IN RE 1974 IR 197

SUCCESSION ACT 1965 S115

Synopsis:

Wills

Succession Act, 1965; wife survived husband by less than one day; whether S.111 creates an interest in the legal share property or a personal right to elect to take such interest. Held: Under S.111 a legal interest vests on death of testator. (Supreme Court: Murphy, Lynch, Barron JJ. 08/05/1997)

In the matter of the Estates of Thomas and Kathleen Cummins: O'Dwyer and Charleton v. Keegan

[1997] 2 ILRM 401

1 JUDGMENT delivered on the 8th day of May 1997 by BARRON J. [NEM DISS]

2 Thomas Cummins and Kathleen Cummins in the title hereof were husband and wife. Thomas Cummins died on the 2nd February 1995. At the time of his death his wife was in a coma. She died later on the same day without having regained consciousness nor without becoming aware that her husband had died. The couple had no children. They both died testate. The wife left a substantial estate, its net value being £370,914.06. That of the husband was considerably greater, amounting to £2,408,211.14.

3 Since her husband made no provision for his wife by his will, the question arose as to what interest, if any, Kathleen Cummins acquired in her husband's estate under the provisions of Part IX of the Succession Act, 1965by reason of his death before hers. She had not renounced her rights under that Part in accordance with the provisions of s. 113 nor had she been disentitled to succeed by virtue of the provisions of Part X of the Act.

4 A residuary legatee of her estate claimed that her estate included the legal right under s. 111 of the Act. Accordingly, her executors commenced these proceedings in which they sought for the determination of the following question:

"Whether by virtue of the death of her husband Thomas Cummins, Kathleen Cummins acquired a half share in the estate of her husband."?

5 This appeal raises a net issue, whether the right given by s. 111 of the Succession Act, 1965creates an interest in the property comprising the appropriate share in the estate of a deceased or merely a right personal to the widowed spouse to elect to take such interest. Part IX of the Act gives to a widowed spouse a right to share in the estate of the deceased spouse notwithstanding testamentary disposition to the contrary. S. 109 provides as follows:

"(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of this Part shall have effect."

6 Section 111 is as follows:

7 2 "(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

8 (2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate."

9 The question which arises is as to the meaning to be given to the words "shall have a right to". It is not just a question of construing the word "right" in the context in which it is used because in s. 112 "the right of a spouse under section 111 is to be known as a "legal right".This expression is defined in s. 3 of the Act as meaning "the right of a spouse under s. 111 to a share in the estate of a deceased person". "Share" in relation to the estate of a deceased is...